Top U.S. copyright cop, Microsoft speak out against Google Books settlement

Updated 5:10 p.m.: Google announced that it will share digitized books with rivals such as Amazon.

Updated 3:13 p.m.: Google responds.

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The nation’s top copyright official on Thursday came out against a proposed legal settlement that would allow Google to digitize millions of mostly out-of-print books, saying parts of it are “fundamentally at odds with the law.”

The news comes two days after Microsoft filed a strongly worded brief explaining why it opposes the settlement, which opponents say would create an “unprecedented monopoly and price-fixing cartel.”

However, also on Thursday, Google announced that it plans to share the books with its rivals.

“Google will host the digital (out-of-print) books online, and retailers such as Amazon, Barnes & Noble or your local bookstore will be able to sell access to users on any Internet- connected device they choose,” Google said in a statement, as reported by Reuters.

Google’s chief legal officer, David Drummond, told Reuters the announcement was not a major change to the settlement. “It is and it isn’t,” he said. “We always had this vision that we were going to be open.”

The settlement, which has yet to be approved by a federal judge, stems from a 2005 copyright lawsuit brought against Google by the Association of American Publishers and the Authors Guild. The parties privately reached a settlement in October 2008 that requires Google to pay $125 million and devises a revenue-sharing deal to publish material on Google Books.

In late August, Microsoft, Amazon and Yahoo joined the Open Book Alliance, an organization that opposes the Google Books settlement. Opponents had until Tuesday to file briefs with the U.S. District Court for the Southern District of New York.

Judge Denny Chin will hold a “fairness hearing” on Oct. 7 in New York City.

“A class action settlement is the wrong mechanism, this court is the wrong venue, and monopolization is the wrong means to carry out the worthy goal of digitizing and increasing the accessibility of books,” Microsoft’s brief (PDF) states. “Indeed, Congress and numerous academic, non-profit and commercial providers are working towards that goal by way of legitimate legislative and contractual efforts.”

The brief adds: “The proposed settlement is unrelated to the narrow legal dispute before the court and, if approved, would constitute and unprecedented misuse of the judicial system.”

On Thursday, Marybeth Peters, director of the U.S. copyright office, told the House Judiciary Committee that parts the settlement also could have “serious international implications” for books published outside of the United States, The Associated Press reported.

In a written statement, Peters said she was concerned about the definition of “out-of-print” books and was leery of Google’s apparent power, under the settlement, to sell such books without permission from the copyright holder, The AP reported.

It’s unclear how the copyright office’s opinion might influence the U.S. Department of Justice, which is investigating whether the settlement would hurt competition in the growing market for digital books. The Justice Department is expected to share some of its findings with Chin in documents scheduled to be filed by Sept. 18.

Google has digitized more than 10 million books in the past five years. Two million of those are no longer copyright-protected, 2 million were approved by the copyright owner, and the rest are out of print but still copyrighted.

Copyright owners affected by the settlement are given the option to opt out of  not opt in to  Google’s digitizing project.

“Peters was particularly troubled by provisions that would empower Google to make digital copies of all books published by Jan. 5, 2009, with no set deadline on completing the task,” The AP report states.

Some civil rights leaders have spoken out in support of the Google Books settlement, saying it would give underprivileged people unprecedented access to information.

Some selected statements from Microsoft’s opposition brief (emphases in original):

“Millions of copyright owners around the world who did not participate in and do not even know about this litigation  many of whose works Google has not even scanned  stand on the verge of having their copyrights infringed in ways exponentially greater than the conduct challenged in the complaints.”

“Microsoft Corporation has substantial interests in this proceeding. It owns Microsoft Press, a large technical publisher. … It also operates Bing, an Internet search engine that provides users with access to all types of digital information and would be harmed by the anti-competitive effects of the proposed settlement.”

“No one can object to the laudable goal of creating universal and broadly accessible repositories of digital books. Numerous entities  public (including the U.S. Copyright Office and Library of Congress), non-profit (including the Internet Archive), educational (including leading universities) and commercial (including Google, Amazon, Yahoo and Microsoft)  have invested countless time and hundreds of millions of dollars in such efforts. … The proposed settlement, on the other hand, pursues and illegitimate approach.”

“The settling parties now seek this court’s approval of a ‘joint venture’ that would authorize new future infringements and expropriate and impair the exclusive rights of millions of absent class members for the life of their copyrights.”

“Unlike the class representatives (the AAP and Authors Guild) … the millions of class members would become participants in Google Books by means of conscription, not violation.”

“Richard Sarnoff, chairman of the Association of American Publishers, said that the structure of the registry will be ‘tough to replicate for (Google’s) competitors.’ … Michael J. Boni, the lead lawyer representing the Authors Guild, conceded that ‘Google will always have the advantage of having access to 100 percent of the orphan works.'”

“The proposed settlement usurps Congress’s exclusive constitutional role to define and alter the rights and remedies of copyright owners.”

Microsoft goes on and on, mostly about complicated legal processes and precedents.

“The Google Books settlement is injecting more competition into the digital books space, so it’s understandable why our competitors might fight hard to prevent more competition,” a Google spokesperson told seattlepi.com. “It’s important to note that this agreement is non-exclusive and if approved by the court, stands to expand access to millions of books in the U.S.”

Do you think the Google Books settlement goes too far? Would you accept a Google Books monopoly if it meant increased access to millions of books? Does Microsoft present a reasonable argument?